In the Matter of Cm

644 S.E.2d 630
CourtCourt of Appeals of North Carolina
DecidedJune 5, 2007
DocketCOA07-16
StatusPublished

This text of 644 S.E.2d 630 (In the Matter of Cm) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of Cm, 644 S.E.2d 630 (N.C. Ct. App. 2007).

Opinion

644 S.E.2d 630 (2007)

In the Matter of C.M., V.K., Q.K.

No. COA07-16.

Court of Appeals of North Carolina.

June 5, 2007.

Tyrone C. Wade, Charlotte, for petitioner-appellee Mecklenburg County Department of Social Services.

Mary McCullers Reece, Smithfield, for respondent-appellant-mother.

Poyner & Spruill LLP, by Michelle C. Hunt, Charlotte, for Guardian ad Litem-appellee.

STEELMAN, Judge.

There is no prejudice resulting from the trial court's noncompliance with N.C. Gen. Stat. § 7B-1109(a) (2005), when the delay inures to respondent's benefit, affording respondent every possible opportunity to be reunited with her children.

On 11 May 2004, the Mecklenburg County Department of Social Services (DSS) filed a juvenile petition which alleged that C.M., V.K., Q.K., and D.B. were neglected and dependent. Pursuant to a non-secure custody order entered that same day, D.B. was placed with his grandmother and the three remaining children were placed in foster care. In an adjudicatory and dispositional order entered on 22 June 2004, the children were adjudicated to be neglected and dependent as to their mother, Shanna M. (respondent).

*631 The trial court adopted a mediated case plan entered into on 2 June 2004 and a written case plan dated 6 June 2004. Under the mediated case plan, respondent

would obtain a F.I.R.S.T. assessment, attend parenting classes, obtain domestic violence counseling, have sufficient income to meet the children's needs, have safe and appropriate housing, maintain contact with the social worker, receive a bus pass, attend visitation, cooperate with a parenting capacities evaluation, and attend and participate in appointments to meet the children's medical, dental, developmental and educational needs.

Following a review hearing on 15 September 2004, the trial court ordered that respondent "must be able to demonstrate her ability to parent properly by implementing what she has been taught in the various programs." At the time of a review hearing on 18 March 2005, respondent "had not made sufficient progress to have the children returned to her custody." The trial court's findings of fact from a review hearing on 26 April 2005 stated that "a psychological evaluation . . . indicated that the [respondent] will not be able to effectively parent her children without long term support from a helping agency" and that she "cannot effectively meet the safety needs of [C.M.] and can only marginally meet the safety needs of the other children and further that her parenting deficit will be extremely resistant to treatment."

On 23 June 2005, DSS filed petitions to terminate the parental rights of respondent and of the respective fathers as to C.M., V.K., and Q.K. The petitions contained allegations of neglect (7B-1111(a)(1)), leaving the children in foster care for more than twelve months (7B-1111(a)(2)) without reasonable progress, and failure to pay a reasonable portion of the cost of care (7B-1111(a)(3)). The plan as to D.B., the oldest child, remained reunification.

At the 4 October 2005 review hearing, the trial court found that respondent "had made some progress on some case plan goals, [but] she had not yet demonstrated that she was able to meet the children's minimal needs." At the 30 January 2006 review hearing, the trial "[c]ourt found that [respondent] was still not able to meet the significant needs of her children or provide for their day to day care." The trial court found after the 8 May 2006 review hearing "that [respondent] was still not able to parent her children without ongoing intervention."

In its termination order entered after the hearing on 25 July 2006 and 28 July 2006, the trial court found that "the children have not resided with [respondent] in over two and one-half years and she has not parented them during the time that they have been out of the home" and that petitioner "has proven by clear, cogent and convincing evidence that grounds exist to terminate the parental rights of [respondent] to [Q.K.], [V.K.] and [C.M.]." Respondent "has neglected all three juveniles by failing to show that she has the ability to meet their needs if they were to be returned to her home. She has availed herself of numerous services offered by or through the [petitioner]."

After concluding that respondent had neglected the three children (N.C.Gen.Stat. § 7B-1111(a)(1)), left them in foster care for more than twelve months (N.C.Gen.Stat. § 7B-1111(a)(2)) without reasonable progress, and had failed to pay a reasonable portion of the cost of their care (N.C.Gen. Stat. § 7B-1111(a)(3)), the trial court further concluded "[t]hat the best interests of the above-named juveniles would be served by the termination of the parental rights of both respondent parents with respect to these juveniles." The trial court then ordered that respondent's parental rights be terminated as to C.M., Q.K. and V.K.

In her first argument, respondent contends the trial court erred by failing to hold the termination hearing within ninety days after the petition was filed and by failing to timely enter the termination order. She specifically argues she was unable to question the psychologist who had assessed her parenting capacities in 2005 because he had moved out of state by the time of the termination hearing. Respondent complains her case plan was put on a "holding pattern" pending the hearing. She also claims she was prejudiced because she was entitled to a speedy resolution of the termination petition *632 and to a speedy appeal of the order terminating her parental rights. We disagree.

DSS filed the petitions to terminate respondent's parental rights on 23 June 2005. However, the trial court conducted the hearing on 25 and 28 July 2006, more than one year later, and entered an order terminating respondent's parental rights on 19 October 2006. The trial court clearly did not adhere to the time limit found in N.C. Gen.Stat. § 7B-1109(a) (2005), which requires that an adjudicatory hearing be held "no later than 90 days from the filing of the petition" for termination. However, "this Court has held that time limitations in the Juvenile Code are not jurisdictional in cases such as this one and do not require reversal of orders in the absence of a showing by the appellant of prejudice resulting from the time delay." In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam and disc. review improvidently allowed, 360 N.C. 475, 628 S.E.2d 760 (2006).

Respondent's contentions of prejudice due to the delay are not persuasive given the trial court's requirement that she "must be able to demonstrate her ability to parent properly by implementing what she had been taught in the various programs." The trial court found after review hearings in October and December of 2005, and in January and March of 2006, that respondent had made "some progress on some case plan goals" but had not demonstrated sufficient ability to parent the children without ongoing intervention, and that she was unable to meet the children's minimal needs. The court noted that "[respondent] has housing[,][and][t]he visits that have been observed by the parenting educator from the Family Center . . . have gone well."

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In the Matter of C.M.
644 S.E.2d 630 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
644 S.E.2d 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-cm-ncctapp-2007.